Citation Nr: 9810817
Decision Date: 04/08/98 Archive Date: 04/28/98
DOCKET NO. 97-07 141 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to an increased rating for dermatitis of both
feet, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. A. Saadat, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1943 to
January 1946.
This appeal arises from a December 1996 rating action, by
which the aforementioned regional office (RO) granted service
connection for dermatitis of both feet, and assigned a 10
percent rating for this condition effective February 1996.
In January 1997, the veteran filed a notice of disagreement
regarding the disability rating assigned to his dermatitis
condition. A statement of the case discussing this matter
was issued by the RO later that month. The veteran perfected
his appeal on this issue in February 1997.
On his February 1997 substantive appeal, the veteran
indicated that he wanted to testify at the RO before a member
of the Board of Veterans' Appeals (Board). However, in a
letter associated with the claims file in March 1997, the
veteran indicated that he instead wanted to testify before a
local hearing officer. This local hearing was held in May
1997. At the beginning of this hearing, the veteran
confirmed that he no longer wanted a hearing before a Board
member.
A supplemental statement of the case, discussing the rating
assigned to the veteran's service-connected dermatitis of
both feet, was issued in July 1997.
The Board notes that in its December 1996 rating action, the
RO also granted service connection for a shrapnel wound of
the right hand and wrist, and assigned a noncompensable
disability rating for this condition effective February 1996.
The veteran perfected his appeal regarding an increased
rating for this condition, but subsequently confirmed that he
was withdrawing this claim during his local hearing in May
1997. This issue was not included on the Certification of
Appeal, nor was it referenced in the “Hearing Memorandum”
presented to the Board by the veteran's representative in
September 1997. The Board is satisfied that the veteran has
withdrawn his claim concerning a compensable rating for a
shrapnel wound of the right hand and wrist, and this issue
will not be discussed further.
REMAND
The veteran essentially contends that the symptoms of his
service-connected dermatitis of both feet are more severely
disabling than reflected by the rating assigned by the RO.
In reviewing the record, the undersigned notes that in 1987,
the veteran filed a claim for jungle rot of the hands, feet,
legs and back. By rating action in August 1987, it was noted
that the condition should be denied as service medical
records were devoid of evidence of jungle rot. By letter of
that same month, the veteran was notified of the decision and
of his appellate rights. In January 1988, the veteran’s
representative submitted additional evidence in support of
the veteran’s claim and requested that it be reopened. By
rating action dated in August 1988, service connection for a
skin condition was denied. It was classified as psoriasis on
the rating action. By letter dated that same month, the
veteran was notified of the denial of service connection for
a “skin disability”. In 1996, the veteran requested that
his claim for service connection for psoriasis be reopened.
By rating action dated in December 1996, service connection
was granted for dermatitis. Psoriasis was listed as a non-
service connected disability. That same month, the veteran
was notified of the grant of service connection for
dermatitis. There was no mention of psoriasis. Subsequent
to this time, the veteran continued to argue that service
connection should be granted for the psoriasis as well as the
dermatitis.
It does not appear that the RO formally considered this
matter or afforded the veteran the right to appeal any
determination. If service connection were to be assigned the
psoriasis, it would materially impact on the rating to be
assigned the service connected skin disability. Thus, the
issue of service connection for psoriasis is inextricably
intertwined with the issue of the rating to be assigned the
service connected skin disability and must be considered in
conjunction therewith. A claim which is inextricably
intertwined with a pending claim must be adjudicated prior to
a final order with respect to the pending claim. Harris v.
Derwinski, 1 Vet.App. 180 (1991). In considering this issue,
the RO should review the file and determine whether there is
a finally denied claim of service connection for psoriasis.
This would naturally include the issue of whether adequate
notice was given to the veteran of any prior denials of this
claim and of his right to appeal.
The veteran's service-connected dermatitis of both feet has
been rated as 10 percent disabling under 38 C.F.R. § 4.118,
Diagnostic Code (DC) 7813 (1997). This code section provides
that dermatophytosis is to be rated as eczema, dependent upon
location, extent, and repugnant or otherwise- disabling
character of manifestations. The veteran's disorder has
therefore been rated as eczema under DC 7806.
Although the veteran has undergone two skin examinations for
VA purposes, the Board notes that neither examination report
appears to be responsive to the rating criteria outlined in
DC 7806. The September 1996 examination report noted that
the veteran had white, thickened callous-like features which
were painful according to the veteran, especially when they
cracked. The rest of his feet showed a permanent red
condition with edges around the toes and around the border of
both feet. The veteran reported that he could walk but that
his feet were uncomfortable. The May 1997 examination report
noted that the veteran had a rash on his heels, as well as
heavy scaling with some occasional secondary fissures around
the heels and some scaling between the web spaces of his
toes. Some changes on half of the veteran's toenails were
also noted. Neither examiner commented, however, on the
presence of any ulceration, crusting, exudation, itching, or
systemic or nervous manifestations, if any, caused by the
veteran's dermatitis. The examiners also did not comment as
to whether the veteran's dermatitis of both feet was
considered markedly disfiguring or exceptionally repugnant.
The Board is required to discuss its reasons and bases for
assigning a particular disability rating with reference to
the criteria contained in the relevant diagnostic code or
codes. It is not permitted to discuss factors outside the
scope of the rating criteria, nor is it permitted to
speculate on the presence or absence of the criteria on the
basis of incomplete information. Pernorio v. Derwinski, 2
Vet. App. 625 (1992). Consequently, a rating examination
responsive to the rating criteria is necessary in order to
dispose of the veteran’s claim. Proscelle v. Derwinski, 2
Vet. App. 629 (1992).
Although he has been previously examined for VA purposes, the
importance of a new examination to ensure adequate clinical
findings should be emphasized to the veteran. The veteran
should be advised, however, that failure to report, without
good cause, for an examination scheduled in connection with a
claim for an increased rating, shall result in denial of that
claim. 38 C.F.R. § 3.655 (1997).
The most recent treatment records pertaining to the veteran
were associated with the claims file in March 1997. To
ensure that the veteran's claim will receive a fully informed
evaluation, clinical data taking into account the condition
of the veteran's dermatitis of both feet, since March 1997,
must be obtained and reviewed. 38 C.F.R. §§ 4.1, 4.2 (1997).
VA has a duty to assist the veteran in the development of
facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West
1991). The Court has held that the duty to assist includes
obtaining available records which are relevant to the
claimant's appeal. The duty to assist is neither optional
nor discretionary. Littke v. Derwinski, 1 Vet. App. 90
(1990).
In view of the foregoing, and to fully evaluate the veteran’s
claim, the case is REMANDED to the RO for the following
development:
1. The veteran should be notified by
the RO that it will consider the issue
pertaining to psoriasis. He should be
notified of his right to submit evidence
or argument on this matter. Thereafter,
the RO should consider the issue
pertaining to psoriasis, to include the
matter of whether there was a prior
final decision on this issue. The
veteran should be notified of the
decision and of his appellate rights.
Any development deemed warranted with
regard to this issue should be ordered.
2. Any pertinent VA medical records
documenting treatment of the veteran's
dermatitis of both feet, subsequent to
March 1997, which have not already been
associated with the claims file, should
be obtained and made part of the record.
The RO should request all such records
from the VA Medical Centers in
Clarksburg, West Virginia.
3. The RO should obtain the names and
addresses of any private medical care
providers who have treated the veteran
for his dermatitis of both feet since
March 1997. After securing the necessary
releases, the RO should obtain these
records and permanently associate them
with the claims file.
4. The RO should schedule the veteran
for a special VA dermatological
examination. The veteran and his
representative should be notified of the
date, time and place of the examination
in writing, and the RO should advise the
veteran that, pursuant to federal
regulations, failure to report for this
examination, without good cause shown,
will result in the denial of his claim
for an increased rating. A copy of this
notification letter should be associated
with the claims file.
5. The veteran should thereafter be
afforded a VA dermatological examination.
a. General information for the
examiner: The claims folder must be
made available to the examiner for
review before the examination. A
copy of this Remand decision must be
provided. Such tests as the
examiner deems necessary should be
performed.
b. The examiner should specifically
indicate whether the veteran's
service-connected dermatitis of both
feet is manifested by ulceration,
exfoliation, crusting, systemic or
nervous manifestations, exudation or
itching, or extensive lesions. The
severity and/or frequency of these
manifestations should be noted. The
examiner should also offer an
opinion as to whether the veteran's
dermatitis of both feet is markedly
disfiguring or exceptionally
repugnant. Any time lost from work
due to this service-connected
disability should be noted. The
examiner should also comment on the
effect of this service-connected
disability on the veteran's ability
to be employed. If there are any
co-existing skin or other conditions
of the feet, the complaints and
findings referable thereto should be
dissociated from the service
connected skin disability. If it is
not feasible to do so, the physician
should indicate the reasons
therefor.
6. Following completion of the
foregoing, the RO must review the claims
folder and ensure that the foregoing
development has been completed. If any
development is incomplete, appropriate
corrective action should be implemented.
If the examination is inadequate for any
reason, the RO should return the
examination report to the examining
physician and request that all questions
be answered and/or all criteria be
evaluated.
7. Thereafter, the RO should again
review the record. If the veteran fails
to report for the examination, the RO
should also consider the veteran’s claim
under the provisions of 38 C.F.R.
§ 3.655. The veteran and his
representative should be issued a
supplemental statement of the case, to
include citation to 38 C.F.R. § 3.655, if
appropriate, and advised of the veteran’s
appellate rights.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is informed. The purpose of this
REMAND is to obtain additional medical information and afford
the veteran due process rights. No inference should be drawn
regarding the final disposition of the claim as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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